biological child

Indian Child Welfare Act

The Indian Child Welfare Act of 1978 (often abbreviated as ICWA) (25 U.S.C. § 1901 et. seq.) is a piece of Congressional legislation that redefined the jurisdiction of Native American tribes when it comes to custody proceedings involving Native American children.

Overview of ICWA

The ICWA gives tribal governments a strong voice concerning Native American child custody proceedings by allocating tribes sole jurisdiction over states when the child is domiciled on the reservation and concurrent, but presumptive, jurisdiction over non-reservation Native Americans’ custody proceedings. (25 U.S.C § 1911)

The ICWA lays out the minimal Federal standards for nearly all Indian child custody proceedings, including adoption, voluntary and involuntary termination of parental rights, and removal and foster care placement of Indian children. Section 1903 defines Indian child as “any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.”

The ICWA does not cover child custody hearings during divorce proceeding. (§ 1911)

An Indian tribe can request the transfer of a child custody proceedings from a state’s court to the tribal court when an Indian child does not reside or have domicile upon tribal lands. The ICWA states this transfer must be made, unless either parent objects or “good cause” exists not to make the transfer.

If a transfer is denied and parental rights are terminated, the ICWA indicates where an Indian child is to be placed: with extended family first; then other members of the tribe; then other Indians who are not members of the tribe; and finally non-Indians. As with transfers, the ICWA includes a "good cause" exception to the statutory placement preferences, and state courts are split in their interpretation of good cause. (§ 1915)

The ICWA allows parents of Indian children to voluntarily waive parental rights to a court “of competent jurisdiction,” i.e., either tribal court when the child is domiciled on tribal lands or state court when the child does not and the tribe has not successfully transferred the case to the tribal court. The ICWA requires that the parents be informed in writing about the full implications of the ICWA. It also decrees that the termination cannot be made prior to birth or within ten days after birth. The ICWA further allows either parent to withdraw consent of the adoption up until a final decree of termination of rights or adoption is issued. Finally it allows the birth parents to annul the adoption, within two years, if the adoption decree was made under fraud (which includes not following the ICWA guidelines) or duress. (§ 1913)

Another provision requires the Federal government, states and other tribes to give “full faith and credit” to the decisions made by a tribal court. (§ 1911) The ICWA also provides funding for child and family programs, such as family assistance, educational programs and legal council in ICWA litigation. Further, the ICWA allows tribes under Public Law 280 to exercise child custody jurisdiction even though they would not typically enjoy this jurisdiction. The final clause of the ICWA states that even if the courts find a portion of the ICWA unconstitutional, the full body itself would not be deemed unconstitutional. (§ 1963)

Rationale for Passage

Congress’s overriding purpose in passing this act is to protect Indian culture and tribal integrity from the unwanted removal of Indian children by state and federal agencies. Congress reasoned “there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children.” (§ 1902.)

The congressional hearing concerning the ICWA found that somewhere between 25 percent to 35 percent of all Indian children had been removed from their families and placed in foster or adoptive homes and institutions from 1969 to 1974. Further statistics showed that in some states, such as Minnesota, Indian children faced foster care placement sixteen times more often than their non-Indian counterparts. (1978 U.S.C.C.A.N 7531.)

The first Supreme Court case dealing with ICWA was the 1989 case Mississippi Choctaw Indian Band v. Holyfield(490 U.S. 30, 109 S.Ct. 1597) This Court ruled that the ICWA gives the tribal court exclusive jurisdiction over a case where the parent was domiciled on the reservation, no matter what their own personal desires are in the custody case.